The July decision of the regional ECOWAS parliament not to support a special tribunal in charge of trying the crimes of former Gambian leader Yahya Jammeh was a blow to the Gambian government. But it may just be a delay in the process of establishing the court. Why Gambia failed to gather political support among the region's parliamentarians and who were the actors behind the ECOWAS parliament's rebuke?
In July, at the first ordinary session of the Ecowas Parliament in Abuja, Nigeria, five lawmakers from The Gambia appeared before the Economic Community of West African States (ECOWAS) parliament, arguing why the regional body should support its Special Tribunal expected to try Jammeh-era crimes. The parliament however did not vote in favour of this, on the basis that they cannot be both a "player and a referee". "In the event that the proceedings of the Tribunal faces any challenges or is queried, ECOWAS stands to lose its legitimacy to mediate. This could further exacerbate the issues as there will be nowhere else to run to within the sub-region," the joint committee of the ECOWAS parliament argued.
The Gambian government is officially seeking to have an Ecowas-supported special court to try the former president of The Gambia Yahya Jammeh and those most responsible for crimes committed under his rule (1994-2017). The position taken by the ECOWAS parliament seemed to be a blow for Banjul.
Information however reaching Justice Info is that The Gambia failed to secure a win even before this was tabled before the region's parliamentarians. Whilst the Gambian government virtually covered all the technical aspects of this process, it is said to have fallen short in its political engagement. Some observers say that the real story is not that the ECOWAS Parliament voted as it did but that the diplomats at ECOWAS Mediation and Security Council (MSC), who set the agenda for the ECOWAS Heads of State and Government meeting, kicked the matter over for 6 months - and that the government of the Gambia had not done the preparatory work to get it adopted there (or at the Parliament).
The Gambian government is pushing back
"The Government will certainly have to continue having both technical and political dialogue with ECOWAS Member States, especially the Ministers of Justice, Foreign Affairs and Defence, ECOWAS Ambassadors and Heads of States" - these are the counterparts who form the MSC - "but it would be unwise, even distasteful to state that our counterparts are politically against our cause when the substance of the matter is yet to be politically tested," retorted Ida Persson, the Special Adviser on Transitional Justice at Gambia's Ministry of Justice. "At a technical level, the Ministers of Justices' and their experts have endorsed the Statute and Decision on the Special Tribunal. Thus, we remain hopeful that the Community is for and not against the notion of ensuring justice and accountability for serious human rights violations and crimes." She however agreed that in retrospect, they should have insisted on the Ministers meeting before the Ambassadors meeting. "We were unaware of this procedural requirement," she said.
"As a member of a joint Ecowas-Gambia Technical Committee, I was involved in the technical aspect together with other members of the committee," said Salieu Taal, former President of The Gambia Bar Association. "In that regard, The Joint Technical Committee has finalized the draft statute for the proposed Special Tribunal and subjected the draft to extensive consultations with representatives from ECOWAS commission and the Court, experts from the various ECOWAS Justice Ministries and a panel of eminent International Criminal Justice and constitutional law experts including Gambian nationals. What is left is the political processes to take its course and hopefully get the leadership of ECOWAS to approve the Draft Statute at the next Heads of State Summit in December."
Reacting to the ECOWAS parliament's decision, Alamami Gibba, Gambia's National Assembly representative for Foni Kansala, Jammeh's home district, and a staunch supporter of the former president, told a Gambian medium this was not an unexpected decision. "I have seen the wave coming. This is the government that looted and ate all the resources of Jammeh. Today, you want to prosecute what you loot and ate of his resources, so you see how ironic some of these [things] are," said Gibba. He was glad ECOWAS did the "right" thing.
Justice Info contacted the Minister of Foreign Affairs Mamadou Tangara to understand the role his ministry played in this process but he did not respond to our questions.
Liberian MPs against justice?
"Of course, we all agree that the Gambian government can and should do much more to generate political support between the first and the second round but it is also worth reviewing what other forces may be working in the background to sabotage this project and why," said Martin Petrov, the Special Justice and Accountability Adviser to Gambia's Attorney General.
Reports have mentioned that two Liberian MPs, Edwin Snowe and Taa Wongbe, took the floor to support the majority in the ECOWAS Parliament decision. Wongbe, a businessman, is a newly elected Liberian MP and the Chairman of the Foreign Affairs committee of Liberia's House of representatives. Snowe has had political and family ties in the past with former President of Liberia, Charles Taylor, who is currently serving a sentence of 50 years in prison delivered by a UN-sponsored tribunal for war crimes committed in Sierra Leone. He was recently accused of corruption by a U.S-based Liberian advocacy group founded and directed by Jerome Verdier, the former chair of Liberia's truth and reconciliation commission. (A Liberian court "cleared his name" of corruption in the past Snowe said, adding that he divorced Taylor's daughter and left Liberia while Taylor was still president.)
"The first thing I need to clarify, this is not an Edwin Snowe decision as perceived by many. It's a decision of the parliament," Snowe replied in an interview with Justice Info. "Yes, I chair the Committee on political affairs, peace and security. So I played a key role in doing this. Am I opposed to the establishment of the court? No. Do I want perpetrators to face justice? Yes. Do I need an answer for the victims? Yes. But do I want Ecowas to be a partner to this court? I will say no. I support the court. So let the record reflect that I support the establishment of the court."
"The word 'partnership' was specifically used in the text. The text is asking Ecowas to make approvals, do justice selection or disbursement of funds. We are only trying to save the already damaged image of Ecowas," Snowe said. "When I spoke to the foreign minister of The Gambia on this matter, you know what he answered to me? That even he has not seen this document when it went to ECOWAS."
According to Petrov, "at least some of the MPs who took the floor and expressed concerns/opposition to the establishment of the Special Tribunal did not necessarily speak on behalf of their respective countries. Their remarks were not coordinated with their respective capitals."
A mere six-month delay?
In April, the National Assembly of The Gambia passed two bills expected to kickstart trials of crimes committed under the regime of Jammeh. Although there was no timeframe given by the Gambian government, this still heightened hopes that trials were underway. When the ECOWAS parliament decision was delivered, many believed it to mean the regional body's complete exit from the process. Although the Ecowas parliament is only an advisory body and its decision is not final, it was widely viewed as a major blow to the accountability process.
What this may mean, however, is that it has just delayed it.
"This will delay things by six months, but it could also help set the court on a firmer footing," said Reed Brody, an American lawyer and member of the Ecowas-Gambia Technical Committee who has been a leading actor in trying to bring Jammeh to book. "The advisory opinion of the ECOWAS parliament is not a setback towards the establishment of the Special Tribunal," Persson also argued. "Certainly this would have been the case if the opinion was binding on the ECOWAS MSC or Heads of States, but as you know, it is not. The process of establishing a Special Tribunal is on course. The introduction of the Special Tribunal in December as opposed to June is not a delay because in the meantime, the Special Prosecutor's Office needs to be set up, case files looked at, investigations launched where needed, etc."
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The murder of other West African nationals
The Gambia's Truth, Reconciliation and Reparations Commission (TRRC) that looked into the violations between July 1994 to January 2017, in its 2021 final report recommended the prosecution of up to 69 people, including Jammeh. The government, in its White Paper released in May 2022, accepted these recommendations and has set up a special prosecutor's office expected to try the crimes.
Yahya Jammeh's regime was marked by widespread human rights violations and abuses that extended to non-Gambian nationals. Part of the reason the support from ECOWAS is advocated for or needed is that several West African countries had their fair share of victimization. Jammeh has been tied to the murders of about 59 West African migrants in the TRRC report, majority of whom were from Ghana.
"Let's remember that in 2005, Jammeh's Junglers [a hit squad] killed about 59 migrants from seven ECOWAS countries, including 44 from Ghana, as many as nine from Nigeria, three from Senegal as well as Cote d'Ivoire, Liberia, Sierra Leone, and Togo," said Brody. "All these countries have an interest in seeing Jammeh brought to justice, and their support will strengthen the court and also make it more difficult for Equatorial Guinea to refuse to transfer Jammeh to the court. So everyone, especially the government of The Gambia, can take advantage of this extra talk to colleagues and leaders and activists around the region and make sure that at the next ECOWAS summit, the West African diplomats and parliamentarians understand the rationale behind the tribunal and see why it helps their own citizens."
Mariam Sankanu is a Gambian investigative journalist with Malagen, The Gambia's premier media platform specialised in investigative journalism and fact-checking. She had previously worked with African Network against Extrajudicial Killings and Enforced Disappearances, a civil society organization. Mariam is a graduate of the School of Journalism and Digital Media at the University of The Gambia.
